A two-year-old Metis girl at the heart of a court fight between her foster parents and the B.C. government walks with her foster father in Butchart Gardens, in an image provided by the foster mother, in Victoria, B.C. in January 2016.

Image Credit: THE CANADIAN PRESS/HO

February 24, 2016 - 10:31 AM

VANCOUVER - A British Columbia foster mother says she refuses to give up hope after losing a court battle to adopt a Metis toddler she has raised since birth.

The woman and her husband have filed an appeal. A hearing on a temporary injunction to keep the two-and-a-half-year-old girl in B.C. is scheduled for next Monday.

"It was a real disappointment," the foster mother said Tuesday. "My husband and I had a little cry about it."

The Vancouver Island couple who can't be named had filed a petition to prevent the Children's Ministry from moving the girl to Ontario to live with older siblings whom she has never met.

The foster mother is Metis, while the caregivers in Ontario are not, raising questions about whether the toddler is better off with parents who share her cultural background or her blood relatives.

A B.C. Supreme Court judge ruled the petition was an abuse of process since a similar action filed by the couple was dismissed last year.

This petition made a constitutional argument that the courts should be able to decide the "best interests" of foster children, instead of leaving the responsibility with the ministry.

"There's an entire class of children in Canada who can't have their interests decided by a court of law," said the foster mother.

"At the centre of this is an innocent little girl with real feelings and very strong bonds to her family. It's the only family she's ever known and there's no valid reason to remove her."

She said she has shown the little girl photos of her sisters and would be happy to bring her to visit them. The family even considered buying a house in Ontario to allow the toddler to be close to her siblings.

She said she hasn't told the toddler about the ministry's plans to move her.

"Any time we've even come close to mentioning going to live with them, she says, 'And you come, too?' Then I back off, because I can see she's very worried and scared."

Justice Grace Choi issued a sealed decision, but it was unsealed at the request of the couple's lawyer Jack Hittrich on Tuesday.

Choi found that any constitutional arguments should have been raised in the couple's first petition, and the "facts, issues and relief sought" by the second petition are essentially the same.

Hittrich said ministry staff have set up a meeting with the couple for Wednesday to discuss a "transition plan" for the toddler.

"We don't have all the details, but they have a plan in place and I imagine they're going to be moving pretty quickly after Monday if we're to lose," he said.

The ministry said it couldn't comment on specific cases, but noted that B.C.'s child-welfare legislation dictates that the safety and well-being of children is the chief consideration.

By law, the ministry must prioritize placing aboriginal children in aboriginal homes. If that's not possible or deemed to be in the child's best interest, the department must seek approval from a committee.

The Metis Commission for Children and Families of B.C. sits on the committee and has said a cultural plan was worked out to ensure the Metis community remains involved in the child's life.

The B.C. Metis Federation, which has more than 1,600 members, has been supporting the foster parents.

President Keith Henry said the organization intends to apply to intervene in the couple's appeal.

OPINION Retired NASA climate scientist, James Hansen, commented in a recent interview that he wasn't terribly worried about the potential of CO2 to disrupt climate back in the 1980s because he “...thought th